Citation Nr: 9806976
Decision Date: 03/09/98 Archive Date: 03/25/98
DOCKET NO. 96-14 094 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for stroke, thrombotic,
right middle cerebral artery.
2. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: The American Legion
DECISION OF THE BOARD
The Board of Veterans’ Appeals (the Board), in accordance
with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1997), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that, because the veteran died while his appeal was
pending before the Court, the Board is without jurisdiction
to act on his claim. The appeal is therefore dismissed.
FINDING OF FACT
On March 4, 1998, the Board was notified by the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila,
Philippines, that the veteran died on January [redacted], 1998.
CONCLUSION OF LAW
Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim.
38 U.S.C.A. § 7104(a) (West Supp. 1997); Landicho v. Brown, 7
Vet. App. 42, 44 (1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
Procedural history
The veteran filed a claim of service connection in September
1995. In December 1995, the RO issued a rating decision
denying the claim. The veteran duly appealed to the Board.
On January 29, 1998, the RO sent a letter to the veteran,
informing him that his records were being transferred to the
Board in Washington, D.C.
On March 2, 1998, the veteran’s accredited representative
submitted a written brief presentation to the Board on his
behalf.
On March 4, 1998, the Board was notified by the RO that the
veteran died on January [redacted], 1998. A copy of the Certificate
of Death was forwarded to the Board.
Analysis
Unfortunately, the veteran died during the pendency of the
appeal. As a matter of law, veterans’ claims do not survive
their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330,
333(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
This appeal on the merits has become moot by virtue of the
death of the veteran and must be dismissed for lack of
jurisdiction.
In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran. 38 C.F.R.
§ 20.1106 (1996).
ORDER
The appeal is dismissed.
Barry F. Bohan
Member, Board of Veterans' Appeals
CONTINUED ON NEXT PAGE
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.
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